There are those who argue that concealed carry is a right under the Second Amendment and then there are those who argue that Open Carry can be banned in favor of concealed carry without violating the Second Amendment. But wait, there's less. There are those who argue that when the US Supreme Court said in the Heller decision that concealed carry is not a right and can therefore be banned without violating the Second Amendment, what the Court actually said was that Open Carry can be banned. Keep in mind that all four judges in the Heller minority also said that the majority was correct in saying that concealed carry is not a right and can be banned.

If you are one of those people then here is you opportunity to do what none of the so called gun-rights lawyers has ever done in any of their concealed carry lawsuits and that is to provide pinpoint citations to case law and other historical authorities in support of your argument.

There are several online legal databases which are free. The easiest to use, which is also the fastest, is Google Scholar. There is also Google Books which has a gazillion books printed before 1924 within which to search for your historical authorities to support your claim that concealed carry is a right under the Second Amendment.

A word of advice. If you are one of those people who claim that the Second Amendment protects a right to concealed carry because the plain text of the Second Amendment makes no mention of concealed carry then you should be aware that isn't a legal argument. To be sure it is an amusing argument to make, but not one any judge in any American courtroom would entertain, not even one who really, really likes concealed carry and who really, really hates Open Carry.

I think court rulings have come together to infer that some form of carry must be allowed - though open, concealed or both - and permitted or permit-less is up to the State.
As we know, it still has not yet been litigated out fully...
I get frustrated with cases that ask for one or the other - we should be asking for either from States that make permit issuance nearly impossible. Keep your restrictive permit for concealed carry as long as unlicensed open is allowed...

I think court rulings have come together to infer that some form of carry must be allowed - though open, concealed or both - and permitted or permit-less is up to the State. As we know, it still has not yet been litigated out fully... I get frustrated with cases that ask for one or the other - we should be asking for either from States that make permit issuance nearly impossible. Keep your restrictive permit for concealed carry as long as unlicensed open is allowed...

Which Federal Appellate courts and which state high courts have held that there is a Second Amendment right to concealed carry post-Heller?

Parker v. District of Columbia 478 F.3d 370 (D.C. Cir. 2007) was affirmed under the name of District of Columbia v. Heller and no DC criminal court of appeals has tossed out a concealed carry case in which the defendant alleged that he has a Second Amendment right under Heller to carry a concealed weapon.

The only Federal court of appeals not to weigh in has been the 11th Circuit. Of the three states in the 11th Circuit, the Georgia Supreme Court reaffirmed its holding in Nunn v. State (cited in Heller) which held that concealed carry is not a right in HERTZ V. BENNETT 751 S.E.2d 90 (Ga. 2013). We are waiting for the Florida Supreme Court (in the 11th Circuit) to have its say about concealed/open carry in Norman v. State.

Not a single Federal Circuit nor state high court has held, implied, or remotely suggested that "some form of carry must be allowed - through open, concealed or both..." They have all said that concealed carry is not a Second Amendment right even in cases where concealed carry was not at issue.

And then there are the state high courts which have held that concealed carry is not a Second Amendment right...

Let's start with a topic in the Judicial forum and see where that leads.

Start a new one whenever you're ready and, if you want any of your posts moved into it, let me know which ones.

I've created the topic. It would be nice to have it pinned so folks can see that it exists straightaway upon entering the Judicial Forum. As for posts to move, I'll leave it up to you to decide but hopefully you'll choose those posts solely debating concealed carry. This thread, for example, is about a concealed carry case and for Culp to prevail, the court will have to conclude that concealed carry is a fundamental right under the Second Amendment. Posts of that type should remain here because regardless of what one believes about concealed carry being a right, if two of the three judges on this panel don't think that concealed carry is a fundamental right then Culp loses.

Thanks.

At least for now, I have pinned it. Keep in mind that we do set threads free every so often, so we don't end up with a wall of pinned topics taking the place of more current events.

Let's start with a topic in the Judicial forum and see where that leads.

Start a new one whenever you're ready and, if you want any of your posts moved into it, let me know which ones.

I've created the topic. It would be nice to have it pinned so folks can see that it exists straightaway upon entering the Judicial Forum. As for posts to move, I'll leave it up to you to decide but hopefully you'll choose those posts solely debating concealed carry. This thread, for example, is about a concealed carry case and for Culp to prevail, the court will have to conclude that concealed carry is a fundamental right under the Second Amendment. Posts of that type should remain here because regardless of what one believes about concealed carry being a right, if two of the three judges on this panel don't think that concealed carry is a fundamental right then Culp loses.

Thanks.

At least for now, I have pinned it. Keep in mind that we do set threads free every so often, so we don't end up with a wall of pinned topics taking the place of more current events.

I understand. There may be periods of inactivity on my part. The opening brief in my California Open Carry appeal is due in less than 56 days. There will likely be days, even weeks, when I don't respond. I took a "short" break to see what was new here and look how that turned out.

By the way, my view is that a right can never be satisfied by allowing one activity to the exclusion of other, protected activities. The example I often use is that the First Amendment cannot be sated by allowing a person to read the Bible/Torah/Koran but not discuss them, or at the same time prohibiting church/synagogue/temple attendance. Each of those activities is protected in and of themselves.

I see open and concealed carry in the same way. Each of them is a means of bearing arms. Each of them is protected, in my view, by the Second Amendment with open carry probably being closer to the core right than concealed carry.

The absence of a pro-2A group arguing that in court is, in one sense, a recognition of what has been seen as winnable challenges. In another sense, there's a distaste for open carry in some quarters.

The absence of courts ruling that way comes, I think, mostly from the fact that the question hasn't been raised. To my way of thinking that doesn't mean that the right is limited in its meaning. It simply means our work isn't done yet.

By the way, my view is that a right can never be satisfied by allowing one activity to the exclusion of other, protected activities. The example I often use is that the First Amendment cannot be sated by allowing a person to read the Bible/Torah/Koran but not discuss them, or at the same time prohibiting church/synagogue/temple attendance. Each of those activities is protected in and of themselves.

I see open and concealed carry in the same way. Each of them is a means of bearing arms. Each of them is protected, in my view, by the Second Amendment with open carry probably being closer to the core right than concealed carry.

The absence of a pro-2A group arguing that in court is, in one sense, a recognition of what has been seen as winnable challenges. In another sense, there's a distaste for open carry in some quarters.

The absence of courts ruling that way comes, I think, mostly from the fact that the question hasn't been raised. To my way of thinking that doesn't mean that the right is limited in its meaning. It simply means our work isn't done yet.

I made similar First Amendment arguments in the district court in my California Open Carry case. In the Heller oral arguments I believe that it was Justice Scalia who pointed out that the English Bill of Rights excluded Catholics. As to the absence of "pro-2A" groups arguing to overturn Open Carry bans, they have instead argued vehemently against Open Carry.

Case in point is the NRA's Peruta v. San Diego concealed carry lawsuit in the 9th Circuit. Not only did the NRA argue to uphold California's 1967 ban on openly carrying loaded firearms, the NRA argued in defense of the California Gun-Free School Zone Act of 1995. The NRA argued in its opening brief that if it did not prevail then not only would the Loaded Open Carry ban be overturned (a ban the NRA helped write and endorsed) but its loss would result in overturning California's gun-free school zones. A result the NRA characterized as "drastic."

As for the Framers of the Second Amendment believing that concealed carry was a right protected by the Second Amendment, when the amendment was enacted in 1791 the newly formed states followed the 1603 Statute of Stabbings (which was extended to firearms) which removed "the benefit of clergy" from anyone who used a concealed weapon to kill another person even under circumstances where a killing with an openly carried weapon could be manslaughter such as being drunk or in the heat of the moment.

And as the en banc decision in Peruta pointed out, prohibitions on concealed carry predated 1603.

In 1791, concealed carry was considered cowardly and criminal. There is absolutely nothing in the historical record which supports the position that the Framers of the Second Amendment, or the people who voted to enact it into law, thought that concealed carry was a right.

By 1868 when the Fourteenth Amendment was enacted, which is the relevant date for evaluating the constitutionality of Federal rights incorporated to the states, no state recognized a right to concealed carry under the Second Amendment or their state analogues. The only exceptions to the prohibitions on concealed carry were for travelers while actually on a journey or, in California, an exception for police officers. An exception not recognized in State v. Reid because Reid was a sheriff and his conviction was upheld.

Where in the First Amendment does it say that you can't sacrifice humans to whatever gods you may believe in?

That would be deprivation of the rights of another, I would think. It wouldn't square with the rest of the founding documents.

"You know, there are some words I've known since I was a schoolboy: 'With the first link, the chain is forged. The first speech censured...the first thought forbidden...the first freedom denied--chains us all irrevocably.' Those words were uttered by Judge Aaron Satie, as wisdom...and warning. The first time any man's freedom is trodden on, we're all damaged..." - Capt. Jean-Luc Picard

“But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

The second amendment says:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Now please tell me where our Constitution differentiates between open and conceal Carry.
The Second Amendment is the law of the land. For too long we have allowed these lawyers and judges to change the Constitution as they see fit and that is wrong.

Where in the First Amendment does it say that you can't sacrifice humans to whatever gods you may believe in?

Nice deflection, we are talking about the second amendment not the first.

The second amendment says:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Now please tell me where our Constitution differentiates between open and conceal Carry.
The Second Amendment is the law of the land. For too long we have allowed these lawyers and judges to change the Constitution as they see fit and that is wrong.

Where in the First Amendment does it say that you can't sacrifice humans to whatever gods you may believe in?

Nice deflection, we are talking about the second amendment not the first.

From my original post:

"A word of advice. If you are one of those people who claim that the Second Amendment protects a right to concealed carry because the plain text of the Second Amendment makes no mention of concealed carry then you should be aware that isn't a legal argument. To be sure it is an amusing argument to make, but not one any judge in any American courtroom would entertain, not even one who really, really likes concealed carry and who really, really hates Open Carry."

Your post shows a profound misunderstanding as to how Federal Constitutional law works. Given that Amazon is chock full of law school textbooks as cheap as a few pennies to a few bucks plus a nominal shipping fee, there is no excuse.

It would be useful if you could quote the part of my post which was uncivil so I can get some understanding of where the line is. I have many years of university and post graduate studies behind me. Everything I have written to date is far more temperate than any professor I have ever known would have written.

mauserme - The post above is an example of incivility "I am not amused nor do I need your advice. I really don't need or want to sit and read law school text books."

My original post invites people to make their case for concealed carry. His is not a logical argument. There are many ways I could characterize what it is but I'm sure that whatever I would say in response would be labeled "uncivil."

I offer only a speculation. As pointed out above more than once, there is no distinction made in the 2A as to the manner in which one has the right to keep and bear arms.

My personal belief is that this means a firearm freely carried about, in view of the public. Indeed, there seems to exist a preponderance of judicial opinion that the core right is open carry, but those opinions are thus far persuasive at best.

It is universally accepted that no right is unlimited, and as such is subject to reasonable regulation. This is especially true with the 2A rulings of late.

Now here's my speculation. Because the 2A doesn't explicitly call out openly carried firearms as the core right, doesn't that confer the right to reasonably regulate the keeping and bearing of firearms to the states via the 10A?

If this is the case, could not a state "regulate" the time, *manner* and place firearms are carried? Is it truly beyond constitutional bounds for a state to designate that only open or concealed carry may be allowed?

And as a little icing on my speculation cake, isn't the prohibition on the carriage of long guns (in any manner) a greater infringement on my rights than dictating one of two modes of handgun carry?

I prefer concealed carry. Seeing guns exposed sometimes freaks people out. That guy in DALLAS who open carried his AR might possibly have been shot dead as a terrorist as he was happily excersizing his right to bear arms.

Civility.

In different times, how we think about man determines how we carry, the manner in which we bear arms. How is the ardent demonstrator of open carry today different from the enthusiastic protestors claiming BLM as they peacefully demonstrate, which is their constitutional right? Looters and the like excepted.

I think the manner in which we may bear arms is subject to the times and locations we inhabit... As wholly unsatisfactory as that may seem to be.

I offer only a speculation. As pointed out above more than once, there is no distinction made in the 2A as to the manner in which one has the right to keep and bear arms.

My personal belief is that this means a firearm freely carried about, in view of the public. Indeed, there seems to exist a preponderance of judicial opinion that the core right is open carry, but those opinions are thus far persuasive at best.

It is universally accepted that no right is unlimited, and as such is subject to reasonable regulation. This is especially true with the 2A rulings of late.

Now here's my speculation. Because the 2A doesn't explicitly call out openly carried firearms as the core right, doesn't that confer the right to reasonably regulate the keeping and bearing of firearms to the states via the 10A?

If this is the case, could not a state "regulate" the time, *manner* and place firearms are carried? Is it truly beyond constitutional bounds for a state to designate that only open or concealed carry may be allowed?

And as a little icing on my speculation cake, isn't the prohibition on the carriage of long guns (in any manner) a greater infringement on my rights than dictating one of two modes of handgun carry?

Sent from my iPhone using Tapatalk

Good questions.

Your third sentence answers your first.

Your second sentence expresses a personal belief. Everyone is entitled to his personal belief but judges are supposed to be precluded from expressing their personal beliefs as law.

As to your Fourth and Fifth sentences, and don't take this to be "uncivil" but they don't compute. 1) The 2A doesn't have to explicitly call out Open Carry as the constitutionally protected manner of carry because it was understood by the Framers of the Second Amendment and those who voted to enact the 2A that concealed carry wasn't just not a right, it was criminal and cowardly.

For the states to have the authority to "regulate" the manner of bearing arms under the 10th Amendment one would first have to repeal the Second Amendment and statutorily ban the Federal common law Open Carry right via an act of Congress. As a Federal right, even if some future SCOTUS were to downgrade the 2A from a fundamental Federal right, the states have no say in the manner of carrying firearms unless the Congress were to grant them the authority to do so and only after the 2A was repealed.

As to your last sentence, yes. Historically it was the ability of handguns to be carried concealed which was considered the evil to be guarded against. The law at issue in Nunn v. State did not ban all handguns, it banned those that were easily concealed while exempting what was known as "horseman's" pistols. An example of a horseman's pistol is the Harper's Ferry Model 1805 and in latter bans, the Colt Walker & Dragoon revolvers. These were large handguns one simply couldn't stick in his pocket and carry around.

The long gun was the quintessential firearm for carrying in public which makes since when you consider that a rifle, or even a smooth bore musket, was more powerful than a handgun of the same caliber and had a much greater range when the Second Amendment was enacted and still do today.

Fortunately, thanks to the Heller and McDonald decisions, handguns are arms protected by the Second Amendment, even those handguns which have an overall length of less than 12 inches.

Which is a good thing given that the handgun is the quintessential weapon for close quarters combat.

I prefer concealed carry. Seeing guns exposed sometimes freaks people out. That guy in DALLAS who open carried his AR might possibly have been shot dead as a terrorist as he was happily excersizing his right to bear arms.

Civility.

In different times, how we think about man determines how we carry, the manner in which we bear arms. How is the ardent demonstrator of open carry today different from the enthusiastic protestors claiming BLM as they peacefully demonstrate, which is their constitutional right? Looters and the like excepted.

I think the manner in which we may bear arms is subject to the times and locations we inhabit... As wholly unsatisfactory as that may seem to be.

Push for what ya need?

That's all very well. Everyone is entitled to a personal preference but that isn't the topic here.

The topic here is to make your case that concealed carry is a right under the Second Amendment. My personal preference, in addition to guaranteeing the right to keep and bear arms, is that the Second Amendment guarantee me free pizzas for life but I can't make that case here, or anywhere, because it doesn't.

One makes a case by citing case law and other historical authorities supporting the proposition that concealed carry was considered to be a Second Amendment right by the Framers of the Second and Fourteenth Amendments and by those who voted to enact those amendments into law.

And keep in mind that an absence of a prohibition does not make anything a Federal right, let alone a fundamental right.

Natural rights, bestowed by one's Creator, are only valid if "one makes a case by citing vcase law"?

This is unacceptable, and hints of a tyrannical restriction of rights by one person who supposes to hold the only key to opening the lock.

I've heard enough.

That's was my thought. I thought the rights in the Bill of Rights were affirmation of natural rights, not granting of rights...

"You know, there are some words I've known since I was a schoolboy: 'With the first link, the chain is forged. The first speech censured...the first thought forbidden...the first freedom denied--chains us all irrevocably.' Those words were uttered by Judge Aaron Satie, as wisdom...and warning. The first time any man's freedom is trodden on, we're all damaged..." - Capt. Jean-Luc Picard

“But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Natural rights, bestowed by one's Creator, are only valid if "one makes a case by citing vcase law"?

This is unacceptable, and hints of a tyrannical restriction of rights by one person who supposes to hold the only key to opening the lock.

I've heard enough.

That's was my thought. I thought the rights in the Bill of Rights were affirmation of natural rights, not granting of rights...

The Second Amendment is a codification of a preexisting right which does not depend upon the Second Amendment for its existence. But whether or not concealed carry is a natural right isn't the topic here. This topic is limited to the Second Amendment and providing for the opportunity to those who claim that the Second Amendment protects concealed carry to make their case.

Natural rights, bestowed by one's Creator, are only valid if "one makes a case by citing vcase law"?

This is unacceptable, and hints of a tyrannical restriction of rights by one person who supposes to hold the only key to opening the lock.

I've heard enough.

That's was my thought. I thought the rights in the Bill of Rights were affirmation of natural rights, not granting of rights...

The Second Amendment is a codification of a preexisting right which does not depend upon the Second Amendment for its existence. But whether or not concealed carry is a natural right isn't the topic here. This topic is limited to the Second Amendment and providing for the opportunity to those who claim that the Second Amendment protects concealed carry to make their case.

Well, I think it's a hard case to prove, because of the problems with the swing of law an culture in regard to this. The genie is out of the bottle, so places like Illinois have required a permission slip to even KEEP arms, and yet another permission slip to BEAR them. Allowing the laws to start to determine the methods of carry in the first place was a huge mistake. The licensure of what should be rights is antithetical to something being a right.

As some court cases have said that their cannot be an outright ban on carry, it's still been left up to the legislature (mistakenly in my mind) the method of carry. Either it is a right or it isn't. We have cases and the Bill of Rights itself that says it IS, but we have laws and procedures that say it really isn't (licensure). So, places like California have made practicing the right to bear impossible to do legally, and the right to keep very difficult.

So, the issue here there is no clarification in the second amendment that says what method of carry is allowed, only that keeping and bearing of arms shall not be infringed. (It has, a thousand times over) As it stands right now, there is no way to say one or the other is protected by the second, except to say that it doesn't specify at all what method is ok. Which, if we're to be clear, means that it should not define either, and it is up to the individual to carry in such a way as not to demonstrably endanger others, as in not handling it, waving it around, etc., so that concealed or open should be ok in all circumstances from a legal standpoint. Prudence of either method is up to the individual to assess and decide.

Edited by Trevis, 23 September 2016 - 11:42 PM.

"You know, there are some words I've known since I was a schoolboy: 'With the first link, the chain is forged. The first speech censured...the first thought forbidden...the first freedom denied--chains us all irrevocably.' Those words were uttered by Judge Aaron Satie, as wisdom...and warning. The first time any man's freedom is trodden on, we're all damaged..." - Capt. Jean-Luc Picard

“But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

I would examine this under a different angle. While Nunn & Chandler are clear with their holdings, I would say those cases are devoid of any analysis required by modern courts. Nunn & Chandler just assumed with no empirical evidence that CC was a societal evil (no mention why the "journey" exceptions to CC made someone less evil). Obviously, as cited by Posner in Moore, we know that law abiding people who CC are not the social evil as believed in Nunn and Chandler. Further, it was pointed out actually in Norman (FL) that a person's wardrobe and weather can affect the manner of carry. CC in a FL summer is obviously not ideal for many people, yet OC in winter Alaska may be just as bad of a proposition.

Something else that bothers me is how the states' RKBA amendments evolved over time. The early ones made no mention of concealed carry (or regulating the manner). I believe it wasn't until after Bliss (which held CC WAS protected under the KY constitution) that this changed. The constitutions started adding in the CC regulations/prohibitions. If it's commonly understood the RKBA didn't include CC why amend the state constitution to reflect this? Other than Bliss in KY it shouldn't have happened in other states if they understood this. Now you might say that those are the state constitutions and have nothing to do with the 2A but I would beg to differ as this reflects the public's understanding.

I'm arguing that VT carry is the true constitutional carry. The state cannot make a good case that there's a particular evil from either mode of carry (there are time,place, manner restrictions).

If it's commonly understood the RKBA didn't include CC why amend the state constitution to reflect this?

Because it is not commonly understood that RKBA includes CC. LWW's live everywhere and the cancer of LWW-ism is everywhere.

KY may be a state where 80-90% believe RKBA includes CC, but the 10% may be leftist political figures who have some clout, enough to put doubt in even the more RKBA-friendly judge's or legislator's mind.

Then they may see other states redefining by judicial fiat, that RKBA does not include CC, and they don't want that happening here, so they amend the state constitution to reflect that RKBA includes CC. Remember the amendments about same sex marriage that took place before 2015? Same pattern. They saw something happening out of state, wanted to do something to protect their state from it, and passed amendments. Of course, they failed.

So Charles, since you are so stridently in support of open carry to the detriment of concealed carry, to the point of disparaging the rights of others to conceal, would you support a law mandating that all those who practice Islam wear a large symbol on their person whenever they are in public?

How about Christians?

How about Jews?

How about people with AIDS or other communicable diseases? Aren't they a threat to society, shouldn't they have to wear a distinctive symbol so they can be identified in public?

In answer to your question then, yes obviously a right to carry includes a right to CONCEALED carry.

No other civil right requires such a public display. In the interconnected web of civil rights is a right to PRIVACY. The right to privacy is, for example, the foundation of the derivative right to abortion.

Insisting that there is only a right to open carry and no right to concealed is an explicit statement that carry by law abiding citizens is somehow a threat to the public such that the public must be continuously made aware of. I concede no such fact, to the contrary, carry by well-intentioned law abiding people on balance is a benefit to society.

OP's continuing tirade against concealed carry rights in various threads all over the board has been wearing on my nerves quite frankly.

As far as posting lists of lower court cases, I could probably find a list of hundreds of cases that follow the militia=national guard theory advanced by the left for decades, which was thrown out by SCOTUS, yet lower courts still seem to follow (witness the Highland Park case).

Edited by Gamma, 24 September 2016 - 11:54 AM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.